Not all lawyers who encounter transportation law understand it, and those who do understand it sometimes try to bamboozle those who do not. In a wrongful death case arising out of an auto-and-locomotive collision at a grade crossing, plaintiff’s tort lawyers appear caught off guard by defendant railroad lawyers’ invalid arguments about the implications of two longstanding federal statutes. And a careful federal judge calls the railroad lawyers’ bluff, and in so doing schools the plaintiff’s tort lawyers on the Interstate Commerce Commission Termination Act of 1995 and the Federal Railway Safety Act.

17 years after passage of the Interstate Commerce Commission Termination Act of 1995 courts still have to hand down decisions on an issue of transportation law so basic that in other fields of law no one would even have to argue about it.

Here plaintiff tort lawyers appear to have missed a clear winning argument that would have been in their favor if they had raised it – i.e., that the Federal Railway Safety Act governed this case because this case was about “safety” and this case correspondingly was not about the “economic” decisions with which ICCTA is concerned.

The railroad’s lawyers appear to have “played dumb” by failing to address in their briefing to the federal court the Federal Railway Safety Act that a well-informed court would have asked about.

On one hand they might have felt a reason to “play dumb” on that point because they would almost certainly have lost it – ICCTA could not have applied here unless the auto collision with the train somehow related to an “economic” decision rather than “safety”.

But the court expressly noted in her opinion that the railroad’s attorneys had failed to brief on this obvious point. In the end, she schooled plaintiff’s lawyers in what their homework should have shown them, and called bluff on the more transportation-savvy lawyers for the railroad.